9th Circuit Reversals 2016 (Habeas Corpus)

Three weeks prior to the end of the current Supreme Court term the Justices have reversed four U.S. Court of Appeals Ninth Circuit decisions. Once again, the 9th Circuit has retained the award for the most reversed federal circuit court in the United States. Ignoring Supreme Court precedent and ruling on habeas corpus petitions de novo instead of the deferential mandate required by the Antiterrorism & Effective Death Penalty Act, 9th Circuit judges repeatedly tried to evade the statute by collateral attack of habeas corpus. All petitions for writs in these cases were previously denied by the California Supreme Court and federal district courts. Kernan v. Honojosa, 136 S.Ct. 1603 (2016). 

Supreme Court animosity toward the 9th Circuit rose sharply in Johnson v. Lee, 136 S.Ct. 1802 (2016). Filing habeas corpus in federal court requires all prior state court habeas corpus petitioners to have initially exhausted all their claims filed on direct appeal from a conviction in state court. The Supreme Court has previously held the procedural rules of a state court must be “firmly established and regularly followed.” The petitioner in Lee contended the California Supreme Court had not followed this rule.

After the California Supreme Court denied her petition, Lee filed habeas corpus in federal district court. Denied in that venue, she appealed to the 9th Circuit where the panel ordered the warden in California to prepare an analysis of the two year period the California Supreme Court had denied habeas without following the Supreme Court rule. The warden submitted a report but the 9th Circuit panel disliked the results and reversed the conviction for murder.

Reversed and remanded by the Supreme Court, the 9th Circuit panel reversed again. On review of this second decision the Supreme Court discounted the panel again and wrote “[T]he Ninth Circuit decision profoundly misapprehends what makes a state procedure adequate.” The California Supreme Court had firmly established and regularly followed the federal rule.

The Supreme Court added that federal habeas corpus will not lie when a petitioner does not allege trial court error on appeal from state court judgment of conviction. Lee never raised the alleged claim of procedural error on appeal from the judgment in state court. The Supreme Court reversed again. A California law professor commented that California had “notoriously unclear habeas procedures.” Apparently he has not read 9th Circuit reversals on habeas corpus.

Another procedural error occurred in Spokeo Inc. v. Robins, 136 S.Ct. 1540 (2016). Article III of the U.S. Constitution requires federal courts to limit their jurisdiction to “cases and controversies,” not abstract or hypothetical issues. Characterized as “standing,” the courts have not always agreed on the issue because each case is factually based and the definition ambiguous. In any event, personal injury is required, subject to judicial review and warranting the authority to provide a judicial remedy. According to the Supreme Court, when analyzing Article III standing the court must consider “concreteness” and “particularization.”

The Supreme Court discussed these issues in some detail and explained the distinction between the two elements. The justices concluded the 9th Circuit panel failed to satisfy both. “Particularization” refers to personal injury; “concreteness” requires a real injury, not an abstract one. The Supreme Court reversed and remanded for the 9th Circuit panel to apply these rules.

Unquestionably, procedural rules and their application lack dramatic impact. Yet, had the 9th Circuit decisions prevailed, an inmate serving a sentence for murder would have been released. Johnson v. Lee was tried in 1997. In Kerman v. Hinojosa the inmate was serving nineteen years for armed robbery. In both these cases retrial would have been highly unlikely and both inmates released.

Despite these cases, a 9th Circuit panel continued to reverse state courts collaterally on habeas corpus. In Currrie v. McDowell, 2016 DJDAR 5486, a murder case tried in 1995, the panel reversed the state court conviction on grounds the prosecutor peremptorily challenged a black juror under the rule in Batson v. Kentucky, 476 U.S, 79 (1986). The Batson decision and its result, invented by the Supreme Court without judicial precedent and mandating a new trial absent any legal error, are grossly disproportionate to the crime and completely unrelated to the trial and jury verdict. In Currie, a legally error free trial is reversed after two decades for excusing a juror. With a retrial unlikely, the 9th Circuit majority panel releases a convicted murderer.

In Currie, the murder conviction was tried by a California trial judge who denied the Batson motion; appeal to the Court of Appeals denied; review by the California Supreme Court denied; petition for a writ in federal district court denied. But the 9th Circuit three judge panel who have never tried a criminal case reversed fifteen judges. A1995 case ready for the Supreme Court.

That a murder case should be reversed by a federal court rendered in a solid conviction is disgraceful. The killer will go free on evidence entirely unrelated to the crime. And this 9th Circuit practice has been repeated repeatedly resulting in injustice to the people of the state.

The U.S. Constitution includes habeas corpus applicable to federal courts. No duplication of this rule in the Constitution applies to the states, and for over a century the federal court s never applied its Constitutional language to state courts except in rare cases involving sentencing. In Fay v. Noia, 372 U.S. 391 (1963) a 6-3 decision, Justice Brennan discovered an historical common law indigenous to habeas corpus and applicable to state court judges who ruled on federal questions.

As Congress continued to expand federal law, the federal courts began reviewing state court decisions involving questions of federal statutory and Constitutional questions. In time, the Supreme Court removed 9th Circuit habeas corpus jurisdiction in Fourth Amendment cases. Later, the Court ended 9th Circuit habeas review of state parole hearings. In the last decade the Supreme Court has frequently reversed the 9th Circuit in other state cases and tightened federal habeas corpus substantive and procedural review. These decisions have repeatedly reversed the 9th Circuit in innumerable decisions involving Constitutional issues.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.


U.S. v. Lee, 2016 WL 2638364


A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing  accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. U.S. v. Lee 2016 WL 2638364. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Lee.

For the last decade the 9th Circuit, invoking habeas corpus on Constitutional issues, has repeatedly reversed state supreme courts within its federal jurisdiction, but the Supreme Court has reversed that court more than any other federal appellate court. During the described era the Justices stripped 9th Circuit jurisdiction in state Fourth Amendment issues and in state parole hearings: “state parole is none of your business.”

In Cavasos v. Smith, 132 S.Ct. 2 (2011) a 9th Circuit habeas panel reversed a state court jury conviction two times on grounds the defense presented a better case at trial. Reversed each time by the Supreme Court, instead of the panel writing another opinion, an unknown person contacted the Governor’s office. In two weeks Governor Brown granted the defendant clemency.

In 1996 a frustrated Congress enacted legislation restricting federal habeas corpus intervention by all federal courts on state court judgments. In the Anti Terrorism & Effective Death Penalty Act, a federal court could only overrule state court decisions unsupported by “clearly established” Supreme Court law-not local precedent. Prior to the statute, the 9th Circuit on habeas corpus had reviewed state decisions de novo under rules on direct appeal.

Confronted by the statute, Ninth Circuit judges no longer allegedly relied on their own interpretation of the Constitution but introduced the Sixth Amendment right to counsel. The Supreme Court had already fulfilled the right of an accused to jury and counsel. The 9th Circuit invented a supplemental issue requiring “effective” counsel. These cases formed the majority of 9th Circuit reversals, each time panels criticizing defense counsel for ineffectively conducting an investigation or trial. Almost every case involved the death penalty, and confirmed the objective of a majority of 9th Circuit judges seeking to terminate capital punishment.

The 9th Circuit undertook another interpretation of “clearly established” Supreme Court decisions. In Batson v. Kentucky, 476 U.S. 79 (1986) the Supreme Court had held prosecutors could no longer peremptorily challenge potential jurors on grounds of race. The 9th Circuit immediately applied the case to overrule a state court by asserting the prosecutor had challenged a potential black juror. The prosecution sought certiorari of the decision, and the Supreme Court reversed with the comment : “The Ninth Circuit court substituted its own opinion.”

Frequent reversal of 9th Circuit habeas corpus opinions of state cases compelled the Supreme Court to eventually require federal courts to “defer” to state courts. Despite the rule, the record of Supreme Court reversals continued and led several 9th Circuit judges to refer to their embarrassment year after year. Judge Ikuta wrote: “Judicial disregard for Supreme Court habeas jurisprudence is inherent in the opinions of the Court of Appeal for the Ninth Circuit here under review.” This language summarizes judicial disregard of the law. In one case a 9th Circuit judge criticized numerous state court “mistakes, ” ignoring the record of the 9th Circuit.

Concerned with the Supreme Court rule mandating “deference” to state courts, 9th Circuit judges discovered another method of reversing cases in habeas corpus. Statutory reference under AEDPA permits reversal only if the state court decision constituted an “unreasonable interpretation” of federal law or of the factual record. The word “unreasonable” is an abstract word, contingent on the facts and subjectively decided. This statutory interpretation requires federal habeas corpus review to merely conclude the state court decision “unreasonable”. As the Supreme Court said, “merely a substitution of opinion.”

The 9th Circuit found yet another alternative to reverse state court convictions under habeas corpus and apply the rules of direct review. After the state supreme court affirmed a conviction, the defendant filed habeas in federal court. The 9th Circuit allowed the district court to conduct hearings on evidence never submitted in state court nor alleged on appeal. The Supreme Court has discontinued this unfair process.

A federal district court judge, ignoring the Supreme Court and its repeated reversal record of the 9th Circuit, and oblivious to federal or state law, asked a habeas petitioner to rewrite his petition to argue the California death penalty unconstitutional. The U.S. Supreme Court and the California Supreme Court have both repeatedly rejected this argument for several years, the former as recently as two weeks ago denying certiorari. Even the 9th Circuit reversed the district court. Boyer v. Chapell, 793 F.3d 1092 (9th Cir. 2015).

Another federal district court judge, who probably never tried a criminal gang case, decided to overrule the California Supreme Court affirmance of a conviction in a case tried in 1985,and a denial of certiorari by the U.S. Supreme Court. Williams v. Davis, 2016 WL 1254149. Gang cases are obviously the most difficult for the prosecution. Witnesses fearful of retribution, immunized accomplices, witnesses who recant or testify inconsistently, and questionable identification. This judge granted habeas in a case 35 years old and impossible for the prosecution to retry when witnesses willing and able to testify have either died or unavailable.

In Williams, a single federal judge retrys a case, ignores a unanimous jury verdict, alleges the prosecutor withheld witness notes from the defense, and chastises the California Supreme Court opinion. The law thirty five years ago did not require pre trial prosecution discovery. And, according to the district court, the California criminal justice system is “dysfunctional.” Unfortunately, the judge forgot to mention this thirty five year old case does not include 9th Circuit reversals as relevant.

Reading Supreme Court cases reflects policy decisions of a majority, not the law. Many of these judges oppose the death penalty and have used excuses consisting of prosecution misconduct, ineffective assistance of counsel, voir dire challenges, and “lawyerly parsed” [Supreme Court] jury instructions, or penalty errors. The Supreme Court has tightened the habeas rules in criminal cases and Congress has attempted to limit federal jurisdiction. The Supreme Court should strip federal habeas corpus review comparable to their decisions on the Fourth Amendment and parole.

Granting habeas petitions not only affects the lives of victims, families and friends. Retrying a case several years after conviction often proves impossible. Incredibly, the attorney general who represents the state has made no comments on the 9th Circuit, more concerned with child truancy, and ignoring her commitment to serve four years while rying to get another job.

The governor, attorney general and the state legislature have done nothing to limit federal interference in California courts and the repeated hearings, release of inmates, delay and cost. The governor wants to spend billions on a train, the attorney general travels around the state soliciting votes, and the legislature more concerned about issuing drivers licenses increasing traffic the City of Los Angeles tries to control. Although not entirely alone, at least one voice is crying in the wilderness.


Ayala v. Davis, 2016 WL 612002 (C.A.9) on remand from Supreme Court

 Ayala v. Davis illustrates another 9th Circuit device to stall imposition of the death penalty evidenced by its per curiam opinion written by the same judge who has never affirmed a death penalty conviction in state courts.

In Davis v. Ayala,135 S.Ct. 2187 (2015) the Supreme Court rejected a Batson motion granted by the 9th Circuit decision in Ayala v. Wong, 756 F.3d 656 (2014). On remand, the Justices did not address other Ayala claims, including a claim of state violation of the Vienna convention. So, now the 9th Circuit on remand had to review a claim not resolved in its original reversed opinion. And critics ask why executions take so long.

The district court had denied Ayala’s Vienna motion but neither the 9th Circuit nor the Supreme Court ruled on it.  Had the 9th Circuit found in favor of Ayala in its per curiam opinion  (2016 WL 61002), another appeal to the Supreme Court would have been filed by the state. Fortunately, the 9th Circuit denied the Vienna claim with knowledge the Supreme Court had already denied similar claims in state courts.

This case is not an unusual 9th Circuit device for delay.  On appeal from the district court, leave some claims without decision and rule on other claims.  If the Supreme reverses the claims asserted, it cannot rule on claims not addressed at the 9th Circuit level and require remand and resolution, another hearing-and possible appeal again to  the Supreme Court.

For a discussion of the original case, see above, Davis v. Ayala, 135 S.Ct. 2187 (2015).

Jones v. Davis, 806 F.3d 538 (9th Cir. 2015) & Deck v. Jenkins, 2016 WL 518819 (C.A. 9)

A federal  district court judge in Jones decided the California death penalty was unconstitutional on grounds it violated the Eighth Amendment.  The judge ruled, citing no case, after encouraging the petitioner to amend his original petition which had not alleged any Eighth Amendment violation.  On appeal, the 9th Circuit panel cautiously reversed the district court pursuant to a Supreme Court decision disallowing new Constitutional rules by federal appellate courts on collateral  review.  The 9th Circuit has ignored that rule indirectly for over a decade.

The 9th Circuit appellate panel in Jones cited Teague v. Lane, 489 U.S. 288, a case holding that “federal courts may not consider novel constitutional theories on habeas review. That principle serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227.The 9th Circuit has reversed so many state court cases by citing its own precedents, and ignoring or distinguishing Supreme Court decisions, that its panel decision in Jones was a surprise.  The panel reversed the district court.

But apparently other 9th Circuit panelists did not agree, and in Deck v. Jenkins the 2-1 majority wrote one of the worst opinions ever-and that is saying a lot. In Deck, six judges, responding to denial of an en banc hearing, wrote a scathing dissent contending the majority panel reversal of the state court decision disrespected Supreme Court decisions, particularly Davis v. Ayala, 135 S.Ct. 2187 (2015).  In Davis the Supreme Court specifically lashed the 9th Circuit verbally for ignoring AEDPA. According to the Supreme  Court, federal habeas corpus exists only to review the failure of the state court procedural machinery.  Never mentioned by ;the panel majority in Deck.

The 2-1 majority in Deck contended somehow Brecht v. Abrahamson, 507 U.S. l619 undermined AEDPA.  Aside from the dissenting judges in Deck, how this decision  could possibly occur was repudiated by a footnote in the dissenting opinion.  The late Justice Scalia citied fourteen cases of Supreme Court reversals of the 9th Circuit for failing to apply AEDPA.

This decision in Deck, surely to be granted cert., ought to be the final straw for the Supreme Court in allowing 9th Circuit jurisdiction in habeas cases from state courts.


Shirley v. Yates, 2015 WL 7422606 (C.A. 9)

A 9th Circuit panel decision, written by a judge who had never tried a criminal case and who allegedly read the voir dire transcript of a trial, tried to find some reason for reversal. (in fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant for an unarmed eighty dollar second degree robbery harming no one.)   Unable to find any state trial court error, no improper jury instructions on the merits or the sentence, counsel was not ineffective, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory evidence, he focused on voir dire.  He wrote an academic hair splitter, lawyerly parsed, and unintelligible opinion frustrating justice by reversing the California Court of Appeal and causing a guilty man freedom. In the absence of a rehearing,  the panel decision will cause another Supreme Court reversal to increase the 9th Circuit record in reversals.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  The California Court of Appeals affirmed the judgment.  So did the district court on habeas corpus.  Not the 9th Circuit. Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to adopt the judgment of the trial court judge in a Batson hearing. A guilty man escapes on the grounds of an alleged prosecution challenge of a black juror.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense incapable of explanation.  What the 9h Circuit does is compare the questions of white jurors with those of black jurors.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same and one juror accepted and the other excused unrelated to race.

Voir dire is no different than life.  We like some people and dislike others.  Personality conflicts are inexplicable  The voice: pitch, acute, abrupt,  indecisive, abusive, whatever.

And, the 9th Circuit has found a way to evade AEDPA.  The panel just holds the state court decision is an “unreasonable application of federal law.”  No explanation.  That enables  the panel to review on an appellate basis instead of collaterally on habeas.

For additional biefs on peremptory challenges, see other cases in that category.

For a complete discussion of 9th Circuit cases, see “Disorder in the Court” written by Judge Waddington.  Amazon.com

Rios v. Lynch, 2015 WL 7729563 (C.A.9)

Once again, the 9th Circuit has written an opinion which could easily be described as inconceivable, or even more so in less polite terms.  Several years ago the 9th Circuit, over four dissents on rehearing, was reversed by the Supreme Court in another  case written in a scathing per curiam opinion; Gonzales v. Thomas, 547 U.S. 183.  The en banc 9th Circuit in Thomas had held the immigration laws applied to a family as a “social group” eligible for asylum.  The Supreme  Court told the 9th Circuit in Thomas to allow the BIA to make those kind of decisions, and the role of the appellate court is not first review but appellate review.  The harshness of Supreme Court language in Thomas was devastating. All nine justices concurred.

The 9th Circuit panel in Rios had  the same factual issues as in Thomas: approval of the use of a family as a “social group” in compliance with BIA “withholding of removal Rules.”  The panel cited – in italicized letters- the Thomas opinion (9th Circuit reversal) was “vacated on other grounds.”  To put it mildly, this is inaccurate.  In fact, Thomas was not vacated “on other grounds” but reversed on exactly the same grounds as the 9th Circuit held in in Rios. The family is not a “social group.”

Rios had sought asylum, CAT, and withholding of removal, but abandoned the first two grounds on appeal.  The evidence supporting all three grounds was identical. If this case is not reheard, the Attorney General will certainly seek Supreme Court intervention.

Immigration: two cases: Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015; Rodriguez v. Robbins, 803 F.3d 502 (9th Cir 2015)

The 9th Circuit is the best jurisdiction for illegal aliens to gain entry to the United States or impede deportation. In Rodriguez the panel held the government must hold bond hearings for those detained awaiting entry six months or longer.  To retain individuals, the federal government must present clear and convincing evidence the alien will not flee or present a danger to the public.  Good luck to the U.S. agents who must prove two negatives.  These Agents  must now waste their time trying to find out who these detained people are.  Providing  or finding information  about them, or using the wrong name or lying, is not unusual.

In the last few years Central American women and children swarmed into the United States.  The government, overwhelmed by the crowds, could hardly determine asylum in an already bulging caseload..  To handle this crowd, the district court certified a class.  How this decision satisfied Rule 23 is known only to the 9th Circuit-who approved the class and also sub classes.

And the court decision is sympathetic to those people whose alleged relatives hold numerous occupations.  What is the record of Hispanic felons  in state prisons.

Now, in a civil case (except for civil trials), we must apply the Constitution for criminal cases.  There is no end  to the flagrant decisions rendered by the 9th Circuit..

Dimaya v. Lynch,

The IJ  ordered deportation of a Philippine native who had been convicted of burglary in two trials and sentenced accordingly for a “crime of violence” under federal law. In the 9th Circuit, burglary is not a “crime of violence” according to another academic hair splitting decision of a three judge majority panel. Excellent dissent.

Mullenix v. Luna, 136 S.Ct. 305 (2015)

(Not a 9th Circuit case but relevant thereto)

When 9th Circuit judges read this Supreme Court  case, their despair will be overwhelming. No longer can the 9th Circuit, who know nothing about police street work, continue their anti law enforcement record on summary judgments in civil rights cases.

In a per curiam opinion the Justices reversed the 5th Circuit and upheld the doctrine of qualified immunity for police officers. In the all too common police chase, the officers pursued a car at 80 to 100 miles an hour as one Leuja, a fugitive from an arrest warrant and intoxicated,  raced through the streets.  On the police radio he threatened to shoot the officers if they did not terminate the chase.

In an attempt to intercept the driver with spikes, the officers laid down a set on the road they knew the driver would travel. As the car neared the spikes, one of the officers decided to shoot at the car engine in an attempt to stop it.  He drove to an overpass, and when the driver drove underneath, the officer fired his rifle. The car hit the spikes, rolled over, and killed  the driver.  At the  trial, the estate representative alleged use of police excessive force. The court denied the officer qualified immunity on his motion for summary judgment.  The 5th Circuit affirmed but the Supreme Court reversed.

The Supreme Court conceded these cases are difficult but all depend on the reasonableness of the officers’  conduct.  Citing Brosseau v. Naugen, 543 U.S. 335 ((2004), a case reversing the 9th Circuit, the Justices held the trial court must consider  all the facts and the reasonableness of the officer’s conduct.  This Court  knows spikes are not always effective and often place the officers in a dangerous position.  Given all the facts, the officer at the overpass selected an alternative to eliminate the chase and protect the other officers. Immunity granted.